Phil Nostrand ’11 & Community Law Clinic Help Noted Musician Reclaim Song Rights

When Philip Nostrand ’11 first met Frank Foster, he was a freshman ROTC scholarship student at Rutgers’ Cook College and Foster taught in the jazz program on the nearby Rutgers Livingston College campus. While free tuition and a guaranteed post-graduation job were appealing, what ultimately led Nostrand to choose Rutgers was the opportunity to play in the Livingston Jazz Ensemble. His memories of Foster – tenor saxophonist, composer of the jazz standard “Shiny Stockings,” and the best known on a faculty of accomplished musicians – include encouraging instructions to the sax section and prized solos during student rehearsals.

Foster left Rutgers the following year and in another three years Nostrand graduated and began a 20-year career in the Air Force. Three decades later, Nostrand and the Community Law Clinic at Rutgers School of Law–Newark have helped Foster begin the process of terminating the copyright with the music publisher holding the rights to “Shiny Stockings.” The composer of one of the Count Basie band’s most famous tunes may finally benefit from the royalties to the song that he wrote for the Basie band in 1955.

Like many young artists, Foster signed a poorly-negotiated contract with a music publishing company without understanding the long-term financial consequences. Predictably, over the years he has received only a small share of the residuals from the hundreds of recordings by such major artists as Basie and Ella Fitzgerald, as well as other uses of his most famous composition. That’s because a work like “Shiny Stockings” becomes part of a catalog of songs that the company which owns the rights can treat as an investment to be bought and sold. More often than not, the bulk of the profits go to parties with no involvement in the creation of the work.

Today Foster, a stroke victim no longer able to play the saxophone, and his wife Cecilia struggle to get by on income from his earlier published compositions and earnings as an arranger. That situation should soon change, however, now that Nostrand and a group of Community Law Clinic students supervised by Clinical Professor John Kettle, who directs the CLC’s intellectual property and entertainment law work, have helped Foster to exercise his rights as spelled out in the Copyright Act of 1976 to reclaim the rights to the song.

The story of how Foster became a clinic client and was reunited with a long-ago student begins with Brian Grady, producer of the upcoming documentary film about Foster titled Shiny Stockings. As part of his research, Grady learned from a friend in the music industry of the Copyright Act and its little-known provision that could help Foster finally earn significant revenue from his music. Another friend, Rutgers Business School professor Wayne Eastman, knew of Professor Kettle and the IP expertise of the Community Law Clinic and contacted the clinical program about taking on the Foster case. Making the project an even better fit were the research resources of the Rutgers–Newark Institute of Jazz Studies, the world’s largest archive of jazz and jazz-related materials. The clinic took the case and Nostrand, as an independent study project supervised by Kettle, worked with clinical students on the research.

Notice of Termination signed by Frank Foster

Nostrand explains that the Copyright Act of 1976 provision states that licenses and agreements entered into before January 1, 1978 can be terminated within a five-year window beginning 57 years after initial vesting of copyright. There is also a second opportunity beginning 76 years after the initial vesting of copyright. An artist or his descendents must serve notice of termination at least two years in advance – but not more than 10 years prior to the selected date of termination. “Shiny Stockings” was registered in March of 1956, so the clinic acted quickly to complete its research and draft the contract termination notice. In a late June meeting filmed by Brian Grady at Newark’s Robert Treat Hotel and attended by Phil Nostrand, Frank Foster signed the Notice of Termination, which is now in the hands of the publisher.

The story of how Phil Nostrand became a Rutgers Law School student involves a few more years and many other locations than the semester devoted to the Foster case. With a B.S. in meteorology, he began his first Air Force assignment in Sunnyvale, CA as a “weather officer,” responsible for advising mission control centers of the effects of solar activities in satellites. “This was nothing like the terrestrial meteorology I’d learned in college and I was fascinated by it,” he says.

His initial intention to fulfill his four-year commitment and then return to civilian life changed when he was accepted into a new Air Force master’s degree program in space operations designed to groom junior officers to manage shuttle operations. After getting his degree from the program, which was taught at the Wright-Patterson Air Force Base in Dayton, OH, Nostrand was assigned to the Johnson Control Center in Houston. “I was very excited to be involved in shuttle activities,” he reports, “and then, after the Challenger disaster, I participated in an extremely thorough analysis of weather’s effects on shuttle operations.”

A window just opening up for copyrights licensed or transferred after January 1, 1978 may provide possibilities for the Community Law Clinic to help other musicians.

Nostrand’s military career continued to advance as he moved to new, ever more interesting assignments at the Palehua Solar Observatory in Hawaii, the Air Weather Service headquarters in Illinois, and the National Reconnaissance Office in Virginia. Along the way he received an M.P.A. from Auburn University at Montgomery. Retiring from the Air Force in 2001, Nostrand first held a management position with a government contractor, and since then has worked as a paralegal and taught LSAT and SAT preparation courses. He entered law school with an interest in two areas of law that would allow him to apply some of his scientific/technical background: environmental and intellectual property. “I’m finding the IP field to be more diverse and interesting than I originally thought,” Nostrand reports. Referring to the Foster case, he says: “I’m particularly drawn to this chance to help older musicians, or their families, take advantage of the legal opportunity to recapture the rights to their work, since it’s bringing me back to my love of jazz.”

Years in the military, assignments all around the county, and the accompanying experiences of buying and selling property and being a tenant and a landlord, including in nationally-registered historic districts, have made Nostrand knowledgeable about some of the issues covered in classes like Property, Contracts, and Federal Income Tax. Corporate takeover cases discussed in Business Associations are more familiar to an older student than to younger classmates. Those perspectives, however, have not made the experience of studying the law full-time while juggling jobs and chairing the Architectural Review Committee of his condominium association much easier. “My wife,” he says, “has been an absolute angel in dealing with my ups and downs, the late nights and early mornings. I can’t describe how much I appreciate and depend on her support, particularly because I know what a strain it has been on her good humor.”

For the film Shiny Stockings, Brian Grady shot some footage at the law school of Professor Kettle and several students discussing the case and at the Robert Treat Hotel of Nostrand and Foster reviewing the details of the termination notice. Clinic students who conducted the background research included Greg DePaul ’10 and Eileen Hansen ’11. Nostrand was also helped by Ed Berger and April Grier of the Institute of Jazz Studies. Berger’s assistance proved valuable because, as Nostrand explains, “I was able to gather information regarding how often his compositions had been recorded and which original recordings had been reissued over the years. I also identified an error in Frank’s name at one of the major performance rights organizations.” Correcting this may result in the distribution of some back royalties. Thanks to Grier, Nostrand was able to examine the physical copies of all the albums, and a few CDs, to obtain additional information about their recording dates and original publishers of Foster’s earliest works.

While Nostrand’s focus was primarily on “Shiny Stockings,” he was able to identify four other works that were held by the same publisher and registered at the same time. Those compositions were included in the termination notice and their rights will also return to Foster and his family. “The work isn’t done, though,” says Nostrand, who is trying to determine who currently owns the rights to several other tunes Foster recorded with his Basie band mate, Frank Wess, around the same time.

Nostrand points out that while the Rutgers Law School efforts have focused on the termination opportunities for works that are 56 years old, the Copyright Act of 1976 also established a recapture opportunity after only 35 years for copyrights licensed or transferred after January 1, 1978. “Well, that window is just opening up,” he observes, “which may provide possibilities for the Community Law Clinic to assist more musicians.”